New law on the employment of migrants

Since the turn of the century a need for competent and highly achieving workers has been rampant with no slowing down in sight. Developed and developing countries both seek to garner as many professional and skillful workers as possible and with an aging population and a low birth rate across many developed nations, such an endeavor became not only lucrative but crucial for the survival and progress of their respective societies. But what can lawmakers across the globe do to incentivize young and promising individuals to provide their time and abilities to the nation these lawmakers represent?

In February of 2024, during the process of amending an Act on Foreigners regarding the assistance to the citizens of Ukraine in regards to the war, polish lawmakers proposed to implement additional measures in the field of benefits for the foreign workers who are in possession of the so called ‘Blue Card’, - a document identifying their status as a high qualification worker. Similar steps have already been taken since September 2022, in which the draft Act on the employment of foreigners was proposed, which aims to lay out a framework for the regulation of the legalization of foreign workers in Poland. Just like their counterparts from all over the world, polish lawmakers strive to implement and quicken the process of digitization which should make the process of legalization more straightforward and iron out any excess bureaucracy if that is even possible in such a difficult and long process.

One of the main innovations in this field is the implementation of a submission process using the praca.gov.pl IT system, which will be used to submit applications,letters, appeals and among other things, provide an ability to receive responses regarding the decisions on their cases and allow the appeal proceedings to take place.

In order to prevent any misunderstandings and ensure satisfactory use of the system, authorities will be tasked with providing assistance to the users in setting up accounts on the platform. This system would also allow foreign workers to access their issued work permits and employments declarations, as previously, the only way for a person to access such information was through their employer. A person would be able to view all their relevant work permits, declarations and decisions by simply using their personal account in the system. In order to prevent unnecessary headaches for the workers, an access to this information will also be granted to different governmental institutions like the Police, the Border Guard and so on. There will also be an option to view all necessary information regarding failures to start work, interruptions in employment and termination of work by an employer. Another part of the working conditions that was subjected to extensive changes was the TRC - temporary residence permit for the purpose of performing labor requiring high qualifications. A new European Parliaments Directive (EU) 2021/1883/EU aims to establish and clarify new rules regarding legal entry, personal rights and the process of granting EU Blue Cards to the foreign workers who seek to work on the territory of the European Union. This directive also establishes a clear definition of higher professional qualifications that were achieved not only through higher education, but also, as a result of professional experience.

Another crucial element that this directive covers is the so called mobility of EU Blue Card holders. In this case, mobility means a right of foreign workers to travel and stay in different EU member states on the basis of specific residence cards or a long term national visa which was granted to that person in a different nation member of the European Union. As of today, foreign workers who are entering Poland and had their EU Blue Card issued to them in a different member state, are only entitled to general rights of foreign individuals, the case that this new directive aims to change by granting those individuals a new choice in either receiving short-term or long-term mobility. In this instance, a short- mobility means a right to stay in another EU nation state for a period not exceeding 90 days in any 180 day time period for the purpose of pursuing their professional activity in order to satisfy their work contract obligations. The law identifies professional activity as a series of actions, which are required to achieve the financial goals and interests of the company entrusting said foreign worker with a task requiring high qualifications, and which are carried out on the basis of a formal signed agreement concluded with a company in a different country. These actions include but are not limited to: attending business meetings and conferences, taking part in negotiations regarding trade agreements, making sales, assisting in marketing strategies, taking part in professional training, providing business and financial advise and so on. Law also states that foreign workers with a Blue Card, who use short-term mobility to work on the territory of Poland, are elieved from an obligation to receive a work permit. Foreign workers who received their Blue Cards and their permit for short-term mobility in different EU member states wont have any issues using said mobility in their work activity, as long as they present all the necessary documents when entering the territory of Poland. Similar in certain regards to short-term, long-term mobility is a right of a Blue Card holders to travel and stay on the territory of the EU member state for a period exceeding 90 days. While it is not permitted for a foreigner to stay in a country, which is part of a Schengen zone, for more than 90 days if the permit was granted in a different country, the new law circumvents this issue by creating a new form of a temporary residence permit, which will be granted on the similar basis as the permit for work requiring high qualifications. The difference is requirement to present a Blue Card granted in a different country that is a part of the EU. As of right now, the existence of the Blue Card previously issued in a different EU member state has no merit during the legalization process in Poland.

Despite the positive aspects of the draft, there are some issues still persist that are poised to cause trouble to any aspiring foreign professional seeking work. The draft does not change the requirement for an employer to prove to the government that they needs to hire a foreign individuals and do not posses an option to hire someone with the same qualifications from the home labor market. Such circumstances for the refusal to grant a temporary residence permit for the need to provide services that require high qualifications to the foreign worker do not actually prohibit the individual from successfully applying for said permit. Now it should be noted, that there are certain cases in which the permit will not be granted if the company or an entity for whom the foreign workers aims to work, had issues that are as follows:

1) the company was created or conducts business operations for the main purpose of facilitating the entry of the foreigners into the Republic of Poland;

2) an employer is a natural born citizen who was found quality of illegally entrusting work to a foreigner, as well as persons who have committed the same crime in the span of 2 years, or a person who was found guilty for committing similar crimes in the sphere of illegal work, or committed crimes in regards to the rights of the people working illegally;

3) the company does not meet the requirements regarding the pay of social security contributions;

4) the company does not meet the requirements regarding the taxes, except in the cases in which the company has obtained a statutory exemption, deferral, payment in installments or suspension of the entire implementation of the decision of the competent authority;

5) an employer does not conduct business activities or has been declared bankrupt.

The draft also includes additional instances in which already granted permit can be recalled:

1) an instance where a permit is being used for a different purpose rather than the one it was granted for;

2) if a company or an entity who has hired a foreign worker is not meeting requirements regarding paying social security contributions or the taxes, except in the cases in which the company has obtained a statutory exemption, deferral, payment in installments or suspension of the entire implementation of the decision of the competent authority;

3) if a foreigner does not meet all the obligations stated in Art. 134 of the Act on Foreigners, for example, notifying the authorities about the change in the conditions of work.

The last one can be nullified if the person proves to the authorities that he has met all the obligations and notified the authorities or that the reason the notification was not delivered was beyond the control of said foreigner. Additionally, if a foreign worker has been fired from their job, they will enter a period of protection, during which their permit cannot be recalled. As of today the law allow this period to be up to 3 months, but in a new draft this period will extended to 6 months for foreign workers who plan to stay in the Republic of Poland for more than 2 years.

There are many issues that can be found in the foreign workers ability to find a job

and fulfill it without damaging their health reputation or future prospects of finding a

The draft also includes sanctions like fines up to PLN 30,000 if these requirements are not met.

Out of the many issues that need to be taken into an account by the law makers around the globe while preparing and enacting the laws in regards to foreign workers, are the issues of bureaucracy, unnecessary actions and the need to balance out the foreign and the national market, in order to gather as many skilled and highly achieving professionals from around the globe and home. Such foresight and brave thinking are absolutely crucial for staying on the top of the game in the constantly innovating and extremely competitive global economy.

Janek, Junior Immigration Lawyer